• Registered Will not probated

IT IS REGARDING THE FAMILY HOUSE.

At the time of writing the will it was registered at the sub registrar's office, but not probated after the death of the testator. 18 years after the death of the testator, the main beneficiary also dies, no executor named.

 The testator had 11children, only 9 are beneficiaries, 3 are left out.
Is the will still valid? Do the left out children have any claim on that house?
Asked 2 months ago in Property Law
Religion: Hindu

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16 Answers

Yes it's valid. Probate is not mandatory for all jurisdictions. If you need any further assistance then you can approach me through LinkedIn. 

Prashant Nayak
Advocate, Mumbai
24215 Answers
51 Consultations

4.4 on 5.0

Probate is not mandatory in many states 

 

2) on demise of beneficiary property would devolve on his legal heirs 

 

3) left out children do not have any claim 

Ajay Sethi
Advocate, Mumbai
84048 Answers
5477 Consultations

5.0 on 5.0

Deed of rectification has to be executed to rectify mistake in measurement 

Ajay Sethi
Advocate, Mumbai
84048 Answers
5477 Consultations

5.0 on 5.0

Act as mentioned herein above 

Ajay Sethi
Advocate, Mumbai
84048 Answers
5477 Consultations

5.0 on 5.0

Yes they can approach court

Prashant Nayak
Advocate, Mumbai
24215 Answers
51 Consultations

4.4 on 5.0

dear sir,

1.The will is still valid and upon the death of the beneficiary, his share will devolve upon his legal heirs. Then left out children have no claim. 

2. you can execute a deed of rectification.

Thank you

Anik Miu
Advocate, Bangalore
2493 Answers
26 Consultations

4.9 on 5.0

The answer to your first query is in affirmative. Yes, the will is still valid.

Please be informed that probate is not a mandate and a duly registered will is also considered as a legally binding document.

Even though probate is not a mandate, it is always advised to get the will probated, it adds more evidentiary value before the Court of law and no one can challenge the veracity/authenticity of the will, in the future.

In your case, after the death of the testator, the property would devolve upon the legal heirs of the main beneficiary/ beneficiaries in the will. Hence, the answer to your second query is in negative. The left-out children would not be able to claim on the property.

The answer to your third & fourth query is also in affirmative. You can change the measurement of the site of the property after it is sold and registered by creating and executing a rectification deed.

Rectification deed is recognized under Section 17 of the Indian Registration Act, 1908, is also known as a deed of confirmation, supplementary deed and amendment deed. 

You can get the rectification deed registered, for which you would have to pay a nominal charge of Rs 100. However, in your case, the mistake in the original documents pertains to change of area/measurement, the stamp duty may differ and more money may have to be paid.

Please note that only the factual, typographical errors in property documents could be nullified by way of rectification deed as the basic nature of the original deed cannot be changed through the rectification deed.

Also, such mistake in the original document should be inadvertent and all parties involved in the contract should agree upon the proposed changes. I hope that won't be a problem in your case.

Hope that satisfies all your queries! All the best!

Abhinav Srivastava
Advocate, New Delhi
33 Answers
1 Consultation

5.0 on 5.0

Hi, the probate is the process, in which so and so person has executed this last will and the Court has put his seal and it is nothing to with the validity of the Will. So will is valid and you can proceed as per the wishes testator.

Pradeep Bharathipura
Advocate, Bangalore
5135 Answers
282 Consultations

4.5 on 5.0

- Even a registered or unregistered WILL having legal value if written in the presence of two witness , and if there is not objection from other legal heirs . 

- Further a registered WILL also can be challenged by the other legal heirs .

- Further , if the WILL is Probated from the court , then it cannot be challenged further. 

- Hence, if there is no objection from other legal heirs of testator , then it is very much valid in the eye of law. 

- Further, if the WILL is valid , then the person named in the WILL can only having right and not left out one. 

- Further , if any beneficiary died , then his legal heirs having right over the same of that beneficiary. 

- Further, you can rectified the sale deed after executing a Rectification deed anytime and can change the measurement accordingly. 

Mohammed Shahzad
Advocate, Delhi
7971 Answers
85 Consultations

5.0 on 5.0

1. The will can be made valid even now.

 

2. Probate of the same can be applied by the legal heirs of the beneficiaries stating that their inheritance from the beneficiaries has now been resisted by others for which the application for probate of the will has been filed.

Krishna Kishore Ganguly
Advocate, Kolkata
26030 Answers
726 Consultations

5.0 on 5.0

1. The area of the property has already been recorded with the Registrar.

 

2. You can not change anything of your own which has been recorded with the Registrar.

Krishna Kishore Ganguly
Advocate, Kolkata
26030 Answers
726 Consultations

5.0 on 5.0

You can not change anything of your own which has been recorded with the Registrar.

Krishna Kishore Ganguly
Advocate, Kolkata
26030 Answers
726 Consultations

5.0 on 5.0

A Will document remains valid for all time with absolutely no time bar for its provisions to come into effect.

However  a Will can be challenged within 12 years from the date of the death of the person. Supreme court ruled in Jamnadas vs Naveen Thakral and Ors (2007) that if there are reasons as to why some parties may not have had knowledge of the will for a long time then the 12 year limit may be waived by the Civil judge as natural justice may be affected otherwise.

So today - the validity for challenging a will - is 12 years from the date on which the will was made public or the date from which the knowledge of the will being in existence could be reasonably assumed.

The children who have been left out or excluded as beneficiaries in the Will cannot claim any share in the property as per Will, if the Will is proved to be genuine and probated by court. 

T Kalaiselvan
Advocate, Vellore
74146 Answers
1202 Consultations

5.0 on 5.0

If the map has been incorrectly projected especially encroaching unauthorized property, then it can be challenged. 

T Kalaiselvan
Advocate, Vellore
74146 Answers
1202 Consultations

5.0 on 5.0

If the property has been sold by wrong measurement which is not in accordance with the property document, then it can be challenged. 

T Kalaiselvan
Advocate, Vellore
74146 Answers
1202 Consultations

5.0 on 5.0

Yes they can go

Prashant Nayak
Advocate, Mumbai
24215 Answers
51 Consultations

4.4 on 5.0

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